Until the FBI backed down from its battle with Apple over accessing the iPhone 5c of San Bernardino shooter Syed Rizwan Farook, it seemed the agency had chosen a near-perfect case on which to make its stand against encryption. By refusing to write software to help law enforcement crack Farook's phone, Apple was made to look like it was defending an indefensible terrorist.
But as the public learns more about the other investigations in which the feds have demanded Apple or Google help crack their phones' security, it now looks like the government has made those decryption demands far more often while fighting a more pedestrian sort of crime: drugs.
On Tuesday the ACLU released the results of its digging through court records, seeking information about any cases in which the feds had used the All Writs Act to ask that Apple or Google assist in accessing data on locked phones or tablets. It found that since 2008, there have been at least 63 of those cases across the country, showing that Apple's standoff with the FBI was about more than "one iPhone," as FBI director Jim Comey had argued. And in the two-thirds of those cases in which the ACLU could determine the crime being investigated, the group tells WIRED that 41 percent were related to drugs, far more than any other category of crime. "The narrative was that they would only do this in cases where the crimes were particularly severe and a serious threat to national security, and that seems to be disproven," says Ezekiel Edwards, the director of the ACLU's Criminal Law Reform Project. "I’m certainly displeased to find that so many of these cases in which the government has forced companies to unlock phones have been drug cases. But I’m not surprised."1
Of the total of 41 cases in which the ACLU could determine the crime that caused the Department of Justice to demand access to a device, 17 were related to drugs, compared to just one known case of terrorism: the San Bernardino case. In fact, those 17 cases by far outnumbered the 10 financial crime cases, eight child pornography cases, and three counterfeiting cases, the next most common crimes on the ACLU's list. (The ACLU explains that in the third of cases where the ACLU couldn't identify the crime being investigated, the government hadn't revealed the docket number of the related court filing that reveals the charges, or because the cases were sealed.)
It's not yet clear how Apple and Google responded to those 63 demands to help law enforcement agencies access device data. Apple didn't reply to WIRED's request for comment on the ACLU's release. Google wrote in a statement only that it has "never received an All Writs Act order like the one Apple recently fought that demands we build new tools that actively compromise our products' security," and that it would "strongly object to such an order." A Department spokesperson responded to ACLU's release with its own statement: "The fact that federal law enforcement uses court process to obtain critical evidence in criminal investigations should not be surprising nor newsworthy," it reads. "The government has made clear on multiple occasions in court that judges across the country have issued prior All Writs Act orders to Apple, and counsel for Apple has noted in court that it received All Writs Act orders with frequency."
The ACLU's numbers contrast slightly with statistics released by the Manhattan District Attorney's office in March, which showed that of 205 locked iPhones the Manhattan DA's lab had attempted and failed to access without Apple's assistance, 25 percent were related to drug cases. It lumped larceny, cybercrime, forgery, and ID theft into another category of cases that accounted for 35 percent of the locked iPhones.
Even so, it should come as little surprise that drug cases would outnumber all others in federal investigations that sought to access locked devices' data. As of last count, fully 89 percent of wiretap orders in the US were used in drug cases. That percentage has climbed dramatically since 1989, when only 62 percent of wiretaps were focused on drugs.
The ACLU's Edwards argues that Apple's encryption battle with the FBI is just another instance of the government asking for surveillance powers in the name of national security, but then applying those powers to the Drug War. He points to the "sneak and peek" searches that were made legal under the Patriot Act in 2001. Drug cases now account for 84 percent of the cases in which those searches are used, Edwards says. "These technologies [and techniques] are often sold by the government as essential tools to protect national security that will be used in careful, discriminating ways," he says. "Over and over again, that's been untrue."
In fact, federal law enforcement has been so focused on drug cases for the last 30 years that they've often been the first domestic cases used to pioneer new surveillance techniques, from thermal imaging cameras to GPS tracking to drones. Even the NSA's bulk metadata collection that scandalized the public when it was revealed by NSA leaker Edward Snowden was first used by the Drug Enforcement Administration. And in 2014 the FBI went so far as to subpoena security researchers at Carnegie Mellon for a technique that could crack the anonymity software Tor's protections for hidden websites, which was then used to take down the Silk Road 2 drug market and dozens of other dark web sites.
That growing use of domestic surveillance for drug investigations, argues the ACLU's Edwards, is simply a reflection of law enforcement's resources, which have increasingly been devoted to the War on Drugs. "All of these technologies are inherently wrapped up in the types of activities [law enforcement] is focused on," he says. "That’s fighting drugs, not terrorism...as part of a law enforcement effort that has been an utter, trillion-dollar failure."
1Correction 3/31/2016 9:50am EST: An earlier version of the story stated that the ACLU uncovered these cases through FOIA requests, when in fact its FOIA requests are ongoing and part of a separate investigation.
